Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and, upon renewal, so much of the order dated May 5, 2008, as denied that branch of the third-party defendant's motion which was, in effect, for summary judgment dismissing the complaint and that branch of the defendant/third-party plaintiffs cross motion which was for summary judgment dismissing the complaint is adhered to.
On January 27, 2004, at approximately 12:30 P.M., the plaintiff Wendy Caldwell (hereinafter the plaintiff) allegedly slipped and fell on snow and/or ice in a parking lot located on the defendant's premises as she was exiting her vehicle. Thereafter, the plaintiff and her husband, suing derivatively, commenced the present action against the owner of the premises, SS Levittown, LLC (hereinafter SS). The defendant subsequently commenced a third-party action against Melville Snow Contractors, Inc. (hereinafter Melville), which was the contractor it had retained to remove snow and ice from the premises.
After joinder of issue, Melville moved, inter alia, in effect, for summary judgment dismissing the complaint based on the "storm in progress" doctrine, and SS cross-moved, inter alia, for summary judgment dismissing the complaint on the same ground.
SS and Melville failed to establish, as a matter of law, that the plaintiff slipped and fell on snow or ice that fell during the storm ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Thus, the sufficiency of the plaintiffs opposition papers need not be addressed ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, upon renewal, the Supreme Court should have adhered to its original determination denying that branch of Melville's motion which was, in effect, for summary judgment dismissing the complaint and that branch of SS's cross motion which was for summary judgment dismissing the complaint.